TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF CASES
LIST OF STATUTES
LIST OF ABBREVIATIONS
CHAPTER ONE GENERAL INTRODUCTION
1.1 BACKGROUND TO THE STUDY
1.2 STATEMENT OF THE PROBLEM
1.3 RESEARCH QUESTIONS
1.4 OBJECTIVES OF THE RESEARCH
1.5 RESEARCH METHODOLOGY
1.6 SIGNIFICANCE OF THE STUDY
1.7 JUSTIFICATION FOR THE STUDY
1.8 LIMITATIONS OF THE STUDY
1.9 REVIEW OF THE LITERATURE
1.9.1 Gaps in Literature
1.10 CONCEPTUAL AND THEORETICAL FRAMEWORK
1.10.1 The Triple Pronged Theory
1.10.2 The Human Rights Based Approach
1.10.3 The Instrumentalist Model of Law
1.11 SCOPE OF THE STUDY
1.12 DEFINITION OF KEY TERMS
1.13 SYNOPSIS OF CHAPTERS
CHAPTER TWO ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT: GENERAL OVERVIEW OF CONCEPTS
2.1 THE CONCEPT OF ENVIRONMENTAL PROTECTION: MEANING, NATURE AND SCOPE
2.2 PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
2.2.1 The Principle of State Sovereignty and Responsibility
2.2.2 The Precautionary Principle
2.2.3 The Preventive Action Principles
2.2.4 The Principle of Good Neighborliness and International Corporation
2.2.5 The Polluter Pays Principle
2.2.6 The Principle of Common but Differentiated Responsibility
2.3 THE CONCEPT OF SUSTAINABLE DEVELOPMENT IN PERSPECTIVE
2.4 PRINCIPLES OF SUSTAINABLE DEVELOPMENT
2.4.1 The Principle of Intergenerational Equity
2.4.2 The Principle of Intra-generational Equity
2.4.3 The Principle of Sustainable Use of Natural Resources
2.5 The Nexus between Environmental Protection and Sustainable Development
CHAPTER THREE MANIFESTATIONS OF THE TENSIONS BETWEEN ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT
3.1 CONCEPTUAL APPRAISAL OF THE CONFLICT BETWEEN ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT
3.1.1 The Argument Advanced By Developing Countries at Rio
3.1.2 Conflicting Objectives between Both Concepts
3.1.3 Achieving Sustainable Development May Not Necessarily Lead to Environmental Protection
3.1.4 Argument on the Priority of Rights
3.1.5 Argument on the Perception of the Principles of Intergenerational Justice
3.1.6 Tension Emanating From Complex Phraseology
3.2 PRACTICAL MANIFESTATION OF THE CONFLICT BETWEEN ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT
3.2.1 Expression of the Tensions in Cameroon
184.108.40.206 Existing Tensions between Forest Dependent Communities, Logging Companies and the State in South East Cameroon
220.127.116.11 The Impact of the Construction of the Memve’eve Hydroelectric Dan on Communities in the South Region
18.104.22.168 Developing Tension Over Logging of the Ebo Forest
3.2.2 Expression of Tensions Beyond Cameroon
22.214.171.124 Tensions Between Ethiopia and Egypt Over the Construction of the Renaissance Dam_
126.96.36.199 Tensions Between the USA and China Over Climate Change
3.3 EFFECT OF THE EXISTING TENSIONS ON THE SOCIETY
CHAPTER FOUR MODELS AT RECONCILING THE TENSIONS BETWEEN ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT: CAMEROON IN PERSPECTIVE
4.1 RECONCILING SUSTAINABLE DEVELOPMENT AND ENVIRONMENTAL PROTECTION BY ADOPTING CONCEPTS UNDER INTERNATIONAL LAW
4.1.1 Corporate Social Responsibility Model
4.1.2 Alleviation of Poverty Model
4.1.3 Debt-for-Nature Swap Approach
4.2 RECONCILING THE TENSIONS IN CAMEROON
4.2.1 Creation of a Joint Administrative Board for Environmental Protection and Sustainable Development
4.2.2 Conducting Environmental Impact Assessment
4.2.3 Encouraging Ecotourism
4.2.4 Signing of a Partnership Agreement between MINEPDED and FEICOM
4.3 THE EXTENT TO WHICH THESE MEASURES HAVE BEEN SUCCESSFUL
SUMMARY OF FINDINGS, RECOMMENDATIONS AND CONCLUSION
5.1 SUMMARY OF FINDINGS
5.2.1 Encourage Nature-for-Sustainable Development Swaps
5.2.2 Promotion of Ecotourism
5.2.3 Simplification of EIA Procedure
5.2.4 Creating Specialized environmental tribunals and training of environmental magistrates
5.2.5 Revision of the 1996 Law on Environmental Management in Cameroon
5.2.6 Creation of an independent CSR regulatory body
This work is the product of many efforts and sacrifices but may have never materialized without the genuine support and assistance from others which I am eternally indebted to.
My sincere gratitude to my supervisor Dr. MIKANO EMMANUEL KIYE who quite apart from his guidance went out of his way to structure this thesis, his honest and timely reviews, assured support, objective criticism, and touch of genius enriched this thesis, shaped my thinking and ideas , his contribution was invaluable to this research.
I am indeed grateful to Prof. Sone Patience, Prof. Irene Sama-Lang, Doctor’s Cyrille Monkam, Ekome Emmanuel, Etienne Kentsa, Ojong and to all other staff and lecturers of the Faculty of Laws and Political Science and particularly those of the Department of English Law for their sound lectures and training in the course of this program, their resourcefulness and professionalism was a valuable contribution to this study.
Special thanks equally go to my LLM classmates of 2019, their brilliant presentations, dedication and encouragements were the brain behind some of my thoughts in the course of this study.
To the Lord Almighty, I can only say thank you and bless your name.
The environment is essential in sustaining humanity, yet its protection has come under some criticism over the years due its impact on the development and economic ambitions of many. This study therefore sets out investigate the inconsistency between environmental protection and sustainable development, locate the tensions that emanate thereof and highlight measures available under international law to reconcile these conflicting interest. In view of this task, the researcher employs a qualitative research methodology specifically the doctrinal method to be able to scoop through a myriad of related literature to make verbal analysis of key issues canvassed in the thesis. The researcher equally engaged in focus group discussions with some indigenes in local communities to get their views and appreciation of various programs and projects around their communities. This study finds that, developed countries bear a greater responsibility to protect the environment than their counterparts from developing countries; whose economies are still at infancy and most of whom argue that environmental protection is more often than not inconsistent with their development agenda. The responsibility placed on developed countries has led to the increase environmental financing in Africa, more involvement in sustainable programs aimed at encouraging sustainable life styles and equally ensuring the compliance with international environmental law standards. It is equally discovered there is some form of green imperialism gaining grounds over the last two decades; there have been growing concerns over the tendency of developed countries using financial power have to gain control over natural resources in the developing world under the guise of conservation sites. The environmental protection sphere has become a hostile one, everyone striving to protect their interest. This paper therefore makes an attempt to unveil the meaning of environmental protection and sustainable development, review key principles of both concepts and assess the techniques available under international law to reconciling the existing tensions.
LIST OF CASES
Corfu Channel Case, Judgment of April 9th, 1949:I.C. J. Reports 1949
Gabcikovo-Nagymaros Project Case (Hungary V. Czechoslovakia) 1997 ICJReports
Island of Palmas Case, USA v. Netherlands, Award, (1928) IIR.I.A.A 828
Nauru v. Aus., 1992 I.C.J. 240, 244
The Trail Smelter Case, USA v, Canada, (1938, 1941) 3 R.I.I.A)
The Pulp Mills Case, Argentina v. Uruguay (2006) ICJRep 133
The Shrimp Turtle Case, India & 3 Others v. USA (1998) WTO No. 58
The People of Cameroon (MINEF) v. Bertrand Van Den Brink and Groupement Coop Buns, CFIB/87c/03-04 107
LIST OF STATUTES
1. African Charter of Human and People’s Rights, 1981
2. Convention on Long-range Transboundary Air Pollution, 1979
3. Convention for the Prevention of Marine Pollution from Land-Based Sources, (1974)
4. Convention on the Protection and Use of Transboundary Watercourses and International Lakes
5. Convention on the Protection of the Mediterranean Sea Against Pollution, (1976)
6. Declaration Of The United Nations Conference On The Human Environment (Stockholm Declaration), 1972)
7. International Law Association Montreal Rules (1982)
8. ILC’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities
9. International Covenant on Economic, Social and Cultural Rights 1966
10. London Convention relative to the Preservation of Fauna and Flora in their Natural State, (1933)
11. Treaty on the Harmonization of Business Laws in Africa, Port Louis: Mauritius (OHADA), 1993
12. The Maastricht Treaty on European Union (EU), 1992
13. The Rio Declaration On Environment And Development, 1992
14. Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (1940)
1. The Constitution of Cameroon, Law No 2008/01 of 14 April 2008 to amend and supplement some provisions of law No 96/6 of 18 January 1996 to amend the constitution of 2 June 19 72
2. Decree No.2013/071/PM of 14 February 2013 To Lay Down Terms and Conditions for Conducting Environmental and Social Impact Assessments
3. Decree No. 94/254/PM of 31st May 1994 to set up a National Environment and Sustainable Development Joint Administrative Board
4. Decree No. 2008-64 of February 2008 to Lay Down Conditions for the Management of the National Environment and Sustainable Development Fund
5. Decree No. 2005/0577/PM Laying Down Procedure for Carrying Out EIA
6. Decree No. 2013/0171/PM to Lay Down the Methodology for Conducting Environmental and Social Impact Assessment
7. Decree No. 2020/3216 of 14 July 2020 Authorizing the Gazetting of Some Portions of The State’s Private Estate
8. Law No.96/12 of 05th August 1996 Relating to Environmental Management
9. Law No 94/01 of 20th June 1994 to lay down Forestry, Wildlife and Fishery Regulations
10. Law No 2016/017 of 14 December 2016 on the Mining Code
11. Law No 2003/006 of 21st April 2003 on Biosafety
12. Law No 2016/007 of 12 July 2016 Relating to the Penal Code
13. Ministerial Order No. 00001/MINEPDED of February 2016 Regulating Categories of Projects/Operations Requiring the Conduct of ESIA
14. Public Notice No. 0219/AP/MINFOF/SG/DFAP of May 03 2006 on the Declaration of Part the Ebo as a National Park
LIST OF ABBREVIATIONS
CONAC: National Anti-Corruption Commission.
COVID-19: 2019 Coronavirus Pandemic.
CI: Conservation International.
CBD: Convention for Biodiversity.
CDC: Cameroon Development Corporation
C.O.I.C: Cameroon Opportunity and Industrialization Center
CSR: Corporate Social Responsibility
DNS: Debt-for-Nature Swaps
EIS: Environmental Impact Statement
EIA: Environmental Impact Assessment
ESIA: Environmental and Social Impact Assessment
ENAM: National School of Administration and Magistracy
ERUDEF: Environmental and Rural Development Foundation
FEICOM: Special Council Support Fund for Mutual Assistance
GDP: Gross Domestic Product
IEL: International Environmental Law
ICENEDEV: International Center for Environmental Education and Community Development
MINEPDED: Ministry of Environmental Protection, Nature Conservation and Sustainable Development
MTN: Mobile Telephone Network
NGO: Non-Governmental Organization
NCHRF: National Commission on Human Rights and Freedoms
SD: Sustainable Development
SEA: Strategic and Environmental Assessment
SGBC : Societé General du Banque -Cameroun
SDG: Sustainable Development Goal
SME’s: Small and Medium Size Enterprises
UNCLOS: United Nations Convention on the Law of the Sea
UNEP: United Nations Environmental Program
UN: United Nations
UNCSD: United Nations Conference on Sustainable Development
UNCED: United Nations Conference on Environment and Development
USD: United States Dollar
WWF: World Wide Fund for Nature
Over the last decades, there has been an immense interest in the protection of the environment; this became ever more pressing with the advent of numerous environmental problems ranging from pollution, degradation of the environment, depletion of resources, destruction of ecosystems, overpopulation. These problems are a threat to our very own existence but have not received proportionate attention. The global response to environmental concerns has been commendable, yet not entirely satisfactory, environmental norms are widely recognized but not vastly respected. The absence of a mechanism to hold states responsible for noncompliance to global environment rules and questions associated with the inconsistent nature of environmental protection and development, are amongst the reasons for the minimal compliance to environmental law standards.
This chapter establishes the evolution of environmental law through discussing the background to the study unravels research problems associated with research question, discusses the objectives of the research as well as the significance and justification for the study. This chapter further highlights the limitation and scope for the study, reviews literature, identifies the knowledge gap and explains the theoretical framework of the research and concludes with a synopsis of chapters.
1.1 BACKGROUND TO THE STUDY
The arrival of the new millennium occasioned the taking into stock of many areas of human concern, chief amongst which was the global environment.1 The picture of the state of our planet as shown by multiple surveys and recent events is troubling; from earthquakes, soil erosion, hurricanes, floods and bush fires to deforestation, pollution, soil degradation, over population, resource depletion and the small matter of global warming and climate change. Recent trends indicate that mankind is more or less making the world unsafe by systematically destroying its own environment in quest of development. The world’s population is increasing at a geometric progression; there is the decline of vital life-support ecosystems, loss of biodiversity, climate change and the air we breathe is becoming contaminated due to pollution, this are amongst the most pertinent environmental concerns.
The persistence of these environmental concerns was the basis on which IEL developed. There was a need for a combined and consented action amongst states to tackle these challenges because environmental problems go beyond jurisdiction and boundaries. Countries cannot effectively protect their environment independently, activities carried out by one state may have numerous effects on another state for instance; excess deforestation in a particular country can lead to climate change in a region, similarly pollution is trans boundary.
National environmental protection is insignificant unless done in collaboration with other states, it might to irrelevant and counterproductive for a state to respect and obtain a high standard of environmental protection while those around it observe relatively low standards; the efficacy of environmental protection can only be attained by a combined effort of states.
This probably justifies why a country will be interested in the manner in which another manages its environment to the extent of funding environmental conservation projects, in some cases citizens of other countries show their dissatisfaction for the another use of the environment2. There was therefore a need for IEL which will bring stake holders together in search for a common ground and find effective solutions to environmental concerns. This phrase ushers us to the historical origin and evolution of IEL.
Environmental protection is a concept deeply rooted in history and tradition; its origins can be traced to the time of creation where the Lord Almighty placed the earth/environment under the control of man and his offspring.3 Placing the earth under their control implied some form of environmental protection as it put the entire environment under the control of man. Even in antiquity, there was often a sense of protecting the environment which was enshrined in the cultures and practices of the people though they took little notice of same for instance; Jewish tradition prohibited the cutting down of trees during warfare4. This same practice in contemporary times will be the same as forest protection which is a key feature in international environmental law.
This is a practice common under other forms of religion that also hold trees and forest as sacred and were to be left untouched. These practices may seem archaic but there is no denying the fact there were means of environmental protection despite the fact that those in the practice might have done so unconsciously.
In the last four decades, international environmental law has evolved rapidly as environmental risks have become more imminent and their management even more complex5. Before 1972 there were very few environmental instruments, however the turn of the 20th century witnessed an increase volume of environmental statutes and agreements. The evolution of international environmental law can be separated into three distinct periods6, to wit; the traditional period (1900-1972), the modern era (1972-1992) and the post-modern era (after 1992)7.
During the traditional era, existing norms on environmental protection focused on bilateral and regulatory agreements aimed at securing fishing rights, water boundaries and the protection of species which were of commercial value. In the 1930’s and 40’s, environmental law was geared towards the protection of fauna and flora in specific regions like the Western Hemisphere and Africa8. While some instruments were out to protect the environment, a good chunk of them were merely imperialistic tendencies to retard the economic development of African states by obliging them to preserve their natural resources and environment for foreign use.
The beginning of modern era which ushered in ‘modern’ international law can be traced to the opening day of the first UN conference on the Human Environment in Stockholm on June 5 1972 which is now celebrated as World Environment Day9. This year is very symbolic in the evolution of international environmental law because it brought countries together for the first time to identify and address environmental issues. Before the Stockholm conference in 1972, the blueprints for the development of environmental law had been laid by UN Economic and Social Council Resolution 1346 (XLV) of 30th July 196810
The Stockholm Conference amongst other things pointed out the need to address a potential conflict between economic development and environmental protection11. This was crucial as there was already a growing concern among developing countries that a global effort to protect the environment will come at the expense of their own development. Perhaps the most important outcome of the Stockholm Conference was the creation of the United Nations Environmental Program (UNEP) stationed in Nairobi, Kenya. The choice of Africa to host UNEP more or less shows where the focus of environmental protection is and goes into buttress the fact that environmental protection is heavy reliant on the activities of developing countries. UNEP is first international non-governmental organization focused on environmental protection and the two decades after the conference saw the proliferation of environmental agreements.
The period after 1992 was the final phase in the evolution of international environmental law, this period cumulated with the hosting of the Rio Conference in 1992. This era witnessed the emergence of many environmental instruments and agreements and thus shifted the focus from enacting new legislations to examining the effectiveness of existing instruments and agreements.
The Rio Conference became an important milestone in the development of environmental law and policy. The conference witnessed the presentation of the report “Our Common Future” prepared by the Brundtland Commission12. The report made the concept of sustainable development the substratum of international economic policy and thus continued the process of reconciling environmental protection and sustainable development.
The United Nations Conference on Environment and Development in 1992 and The World Summit on Sustainable Development on September 2002 in Johannesburg, South Africa were other strides towards environmental protection despite minimal success. However, a vast majority of the afore sited conferences, declarations and report more or less constitute “soft” law, while they played a key role in the development and evolution of IEL, they are mere statements which are nonbinding policy declarations. There are a series of legal instrument from which IEL is applied and respected; ranging from the Convention on International Trade in Endangered Species of Fauna and Flora 1975, United Nations Convention on the Law of the Sea 1982, Montreal Protocol on ozone depletion 1987, Framework Convention on Climate Change 1992 to the 1994 UN Convention to Combat Desertification, Kyoto Protocol 1997 and others.
Notwithstanding, the present global challenge is not to enact more laws or signing novel agreements but rather to guarantee the effectiveness of collective measures and review state responsibility in environmental protection in order to meet with the demands and challenges of a fast changing environment. Thus at present times respect and compliance to IEL rules is more important than the proliferation of same.
From a local perspective, Cameroon is actively engaged in environmental protection and sustainable development as part of the global agenda. However like most developing countries, environmental protection is still at its genesis. The country is a signatory to multitude of international environmental instruments and enacted a series of domestic laws in furtherance of environmental protection and management.
At the apex of local legislation is the country’s constitution13 14 whose preamble as read in tandem with Article 6514 of same alludes to the protection of the environment by using the phraseology “resolved to harness our natural resources in order to ensure the well-being of every citizen...” This preambular proviso of the constitution has been given impetus by other national instruments on environmental protection or similar legislations with an environmental flavor.
First and foremost, 1994 law on Forestry, Wildlife and Fishery Resources15. This is the first local legislation in the renaissance of environmental protection in the 20th century. It adopts a multifaceted and integrated approach to tackling environmental protection as well as taking the management of the environment closer to the people. Similarly the Penal code16 is a key instrument in protecting the environment. it criminalizes wrongful environmental acts and punishes a variety of activities including air and water pollution under Section 261 with imprisonment from 15 days to 6 months or with a fine from 5 000 FCFA to 1 000 000 FCFA or with both such imprisonment and fine, attaches a 15 (Fifteen) days to 3 (three) months imprisonment and a fine of from 5 000 FCFA (Five Thousand) to 20 000 FCFA (Twenty Thousand) or both for cruelty to animals per Section 268 and prescribes imprisonment term from 3 (Three) months to 3 (Three) and a fine from 5 000 FCFA (Five Thousand) to 500 000 FCFA (Five Hundred Thousand) years adulteration of foodstuff under Section 258. The code further proscribes arson under its Section 227. Other local instruments like the Environmental Code17, the Mining Code18 and the Biosafety Law19 form part of the national environmental protection mechanism.
The evolution of IEL has in no way come to an end, for there are and will always be diversified environmental challenges which will obviously lead to new rules and treaties but the burning question will forever be; how effective are those laws and measures? Without enforcement and compliance, international law falls to the ground, irrespective of the might and perfection of a standard norm, lack of enforcement and compliance renders it innocuous. Despite increased awareness in protecting the environment, there is still much skepticism surrounding environmental protection, it believed within certain cycles that environmental protection may hamper development. This essay therefore makes an attempt to unravel this issue.
1.2 STATEMENT OF THE PROBLEM
There is growing tension between developed and developing countries whether environmental protection is inconsistent with development. Environmental protection or sustainable development; providing answers to the above question is subject to a lot of controversy. Apparently the tendency seems to be that, developed countries will answer positive to the former whilst the counterparts in the less developed world will more or less strive for the latter. This difference in agenda between both proponents has brought increasing tension between the concepts which ought to be seen as one in the ordinary sense of it.
There is usually a sense of disgruntlement among developing countries that are often of the view that environmental protection targets them specifically. Despite the general idea that environmental policies should not adversely affect developing countries mentioned in Principle 11 of the Stockholm Declaration. These countries have continuously stressed on the fact the developed countries have attained their current status at the expense of their environment. A view clearly echoed in the Rio Conference.
The emphasis on environmental protection is almost inconsistent with the development agenda of developing countries, preventing deforestation imputes less revenue from timber, puncturing the local economy which uses timber as raw material, low gas emissions and no pollution means limited industrialization, checking population, marine legislations and climate change might be seen as a barrier to economic development.
This argument might seem tenable when one considers the following; most developed countries clearly paid very little attention to protecting the environment whilst developing; they cut down trees indiscriminately, polluted without control with the advent of the industrial revolution, excessively using energy resources and depleting natural resources without restriction. Now the tides have turned, they are the most affected by climate change and hugely concerned about environmental protection. They turn to the under developed world for solutions coming under the guise of protecting the environment.
In addition, the number of international and national environmental law instruments are as various and variant as human activities but their effectiveness is left far to be desired. There are no short of five scores of international instruments, agreements or frame works on environmental protection, coupled with a good number of international conferences and symposia held on the same subject yet there is continuous decline of the ecosystem, depleting groundwater supplies, 8 ’age degrading agricultural soils, over fishing, cutting down forest faster than regrown20, climate is changing, loss of biodiversity, increasing population and pollution just to name of few.
A closer look at these instruments presents a striking reality; the climate convention is not protecting the climate, the biodiversity convention is not protecting biodiversity, the law of the Sea is not protecting fisheries21 et cetera. This calls into question the impact and effectiveness of international environmental law arsenal, majority of which are either weak or ineffective because they do not serve the interest of the so-called bigger nations. Quoting Speth22 ipsissima verba; “If there is one country that bears responsibility for lack of progress on international environmental law issues, it is the United States of America” There is long list of international treaties not ratified by the United States-prominent amongst which is the Kyoto Protocol.
Speth claims, it is not weak enforcement; it is weakness of treaties. These are complex problems whose solutions have been frustrated by inadequate international response due to what the author describes as “political fault lines”: the environment versus the economy, developed nations against the developed nations.
1.3 RESEARCH QUESTIONS
The problems raised in this research have provoked the following research questions;
1.3.1 Main Research Question
- Are the attempts to protect the environment inconsistent with the objectives of development?
1.3.2 Specific Research Questions
- What is the relationship between environmental protection and sustainable development?
- How are the tensions between environmental protection and sustainable development manifested?
- Are there any effects on the society as a result of tensions between environmental protection and sustainable development?
- What measures can be taken to reconcile environmental protection and sustainable development and what are the challenges thereof.
- What policy recommendations can be made to enhance the prospects of attaining a balance between environmental protection and sustainable development in Cameroon?
1.4 OBJECTIVES OF THE RESEARCH
The objectives of my research are grouped into general and specific objectives.
1.4.1 General Objective
- The goal of this study is to investigate whether environmental protection is inconsistent with development and attempt to reconcile the gap that may exist between these concepts.
1.4.2 Specific Objectives
- To establish and assess the relationship between environmental protection and sustainable development.
- To identify and locate the manifestation of the perceived tensions between environmental protection and sustainable development.
- To investigate models to reconcile these conflicting interests and assess government’s efforts and challenges in the reconciliation of same.
- To examine the Cameroon’s prospects of achieving both environmental protection and sustainable development.
1.5 RESEARCH METHODOLOGY
This study will adopt a qualitative research methodology and specifically doctrinal approach.
The research shall be based on content analysis of primary and secondary data in order to investigate the existing tensions between environmental protection and sustainable development and attempt a possible reconciliation. The primary sources of data shall include national and international statutes on environmental protection, some national laws with an environmental flavor like the constitution and penal code, case law, decrees and circulars geared towards protecting the environment as well as international engagements such as Stockholm Declaration and the Brundtland Report which though not legally binding, forms part of the soft law on environmental protection.
On the other hand, secondary data will consist basically of information obtained from textbooks, journals, articles, newspaper publications and information on the internet related the subject matter in issue. The researcher shall also in the course of this study engage in focus group discussions and interviews with selected stakeholders to get their views and opinions on key issues related to the research.
Further, the choice of the qualitative method of research can mainly be attributed to the fact that, the terms and ideas used in this research crosscuts between different subject matters, disciplines and fields and because of the many separate uses and meanings, qualitative methodology is best suited, it provides the possibility to screen through relevant literature and come out with comprehensive facts backed with sound verbal analysis rather statistical forms of analysis.
In the same light, environmental protection is still at the take off stage in Cameroon and little has been done in terms of data collection. Therefore it will be most appropriate to employ a qualitative methodology to enable the researcher peruse what other authors have written on the similar subject and make inferences were necessary.
Further, doctrinal approach to research, which is desktop research, is the most appropriate for legal studies and in the interpreting legal texts and books related to the subject. It provides an opportunity to view the text as it is and interpret same accordingly.
1.6 SIGNIFICANCE OF THE STUDY
The value in this research lies in the fact that, it will be vital for policy makers and the government; it highlights the existing tensions between environmental protection and sustainable development and advances mechanisms for reconciling the tension. It will guide policy makers in the process of enacting environmental policies having in mind their impact of such policies on sustainable development.
This study is particularly important for the additional reason that Civil Society Organizations and other associations actively involved in environmental protection would also find this work very useful and might use it is as a resource material for their training programs and outreach campaigns.
In addition, this research will also make a good read to law students, more particular students of International Environmental Law at post graduate studies. This research will bring to their knowledge, existing legal frameworks on environmental protection in Cameroon and other relevant issues of IEL
1.7 JUSTIFICATION FOR THE STUDY
From the heights of the Kilimanjaro to the depths of the Mariana Trench through the density of the Amazon, protecting the environment is widely discussed as the effects are felt from every direction. The earth as a whole is a single planet and when it comes to environmental protection, state boundaries are not the most important things to consider. The struggle to preserve the environment therefore becomes a global assignment which therefore makes this study relevant.
This study is particularly important in that, the issues addressed in this research are very topical and contemporary in nature. The ongoing debate between environmental protection and sustainable development is the focus contemporary IEL. There is an underlying friction between the developed and developing countries on issues on environmental protection, the latter, claim environmental protection is inconsistent with their development agenda, the former on their part are on a continuous mission to promote the protection of the environment with much emphasis in developing countries where much of nature is left, albeit to protect their interest.
Further, the value of this study also lies in the fact that, individual states and the international community are seeking common strategies to pursue environmental protection and sustainable development at the same time in a bid to balance the conflicting interest between developed and developing countries. The challenge to protect the environment has become a global one, reason why it is more important to talk about the enforcement of international environmental law than national environmental for the singular reason that, it would be irrelevant for one country to maintain a high standard in protecting its environment while others maintain a relatively lower standard.
The strength of this research further lies in the fact that, environmental protection is vital for continuous human existence, it touches on life itself by attempting to make the environment safe for all mankind. The environment plays a key role in all sectors of human life. The availability of a conducive and safe environment is more or less a causa sine qua non for the enjoyment of all other rights and privileges in the society.
1.8 LIMITATIONS OF THE STUDY
There were a number of challenges in conducting this research, ranging from the volume of knowledge on the subject to the novelty of environmental protection in Cameroon and the challenge of obtaining adequate statistics.
First, there are a myriad of literature on environmental protection addressing different issues on the environment separately. It therefore becomes a daunting task to identify that which is relevant to the subject matter amidst the variety. The researcher was able to overcome this by first directing his attention to a particular set of material relevant to the subject matter. In addition, picking a precise case study guided the focus throughout the research.
More to this, environmental protection is still at a take-off stage in Cameroon, thus very little has been documented in this domain and the structures put in place are inadequate and cover a limited area which access to vital information difficult and data collection insufficient. The researcher therefore had to make frequent references to regional and international instruments and reports to fill the gap.
Also, obtaining elaborate and adequate statistics relating to environmental protection in Cameroon was a huge challenge. The local structures are no robust and well-structured to provide accurate data and statistics on pertinent environmental issues. The researcher therefore had to turn to figures and data provided by local and international organisations engaged in environmental protection and rely on those given by authors in this field of study.
1.9 REVIEW OF THE LITERATURE
A good number of authors have documented in this field of law. Some have written on the environmental from a scientific perspective whilst others are concerned with protecting the environment under the auspices of international environmental law and the application of international environmental laws; all this forms the available literature in this domain.
To begin Malcolm Shaw23 introduces the notion of IEL highlighting the dangers facing the international environment. The author establishes state responsibility in protecting the environment and focuses on the appropriate standard for environmental protection. Shaw explains the consequences states of not fulfilling their obligations under IEL and explores a possibility of holding such states to account. Shaw’s focus is mainly on the responsibility of individual states to protect their environment. The work does not take into consideration the challenges faced in fulfilling that task, nor does it attempt to address any conflicting interest that might arise in the course of protecting the environment.
Similarly, D. Bodansky, J. Brunnee and E. Hey24 present a historical evolution of IEL. It divides the evolution into 3 distinctive eras to wit; the traditional, modern and post-modern era. The authors provide a systematic insight on the origins and evolution of IEL. They equally paid attention to the advent instruments of IEL and the growth of IEL as a separate academic discipline. However Bodansky ‘et al’ made very little comment on the effectiveness or impacts IEL, their focus was solely on the historical evolution and origin of IEL as a discipline.
In addition, Wright25 documents on environmental protection from a purely environmental science perspective. He looks at the global environmental picture and brings to the lamplight the devastating effects of human activity on same. The author notes that necessity beacons humanity to take stock of its activities and thread in the part of caution with regards to the use of natural resources and the overall handling of the environment. Despite the fact that the writer dwells more on environmental science, it gives an in-depth knowledge and understanding of the challenges faced by the environment. Though the author makes mention of the effects of human activity on the environment and development, much attention was not given to it, the work was centered on the scientific and biological components of the human environment.
More to this Speth26 offers a devastating critique of global environmental effort and strongly brings global environmental concerns to the world’s attention. The author explains why current approaches to key environmental problems like climate change, biodiversity loss, deforestation, deterioration of marine environments ‘et al’ are not effective per se. Red Sky at Morning is more is more than a litany of wrongs. The author believes that the path to a sustainable future lies in the investing major resources of time and money towards the following directions; progress towards a stable population, freedom from poverty, technology which is environmentally friendly, environmentally honest prices, sustainable consumption and good governance.
Despite how good a critique this book is, it does not offer much with regards to the concept of sustainable development which is a vital part of contemporary IEL. The author principally basis his analysis on environmental protection and how states have failed to live up to the global task of protecting the environment.
In addition, P. Birnie and A. Boyle27 indicate the growth of level of concern and understanding on the dangers facing the environment. This piece paints a picture of the global environment while tracing the evolution of IEL. The major gap in this work is that it does not trace the origin and evolution of sustainable development alongside environmental protection. The concept of sustainable development is rarely mentioned throughout the work.
More to this, according to Bitondo28 an environmental impact assessment that is well embedded in its context can result in conclusions that are appropriate and recognized by all parties. This paper summarizes the evolution of the legal and institutional framework and examines the practice of environmental assessment. The author submits that legal and institutional framework is yet to be effective. For that to be achieved, the existing framework should be completed by application instruments. Also the existing structures of authority should be provided with adequate human, financial and equipment resources. Based on two practical examples, the limitations of the present situation are highlighted, and some suggestions for < 29 improvement are made.
Further, Alemagi29 30 brings a local touch in environmental protection in Cameroon. The author examines the state’s effort to promote the sustainable development while protecting the environment. Alemagi examines the legal and institutional framework put in place by government to ensure the sustainable use of natural resources with specific attention to the forest sector.
1.9.1 Gaps in Literature
The gaps that emerge from the review of the available literature present the following findings. Despite the fact that the available literature in this domain tends to be voluminous, same appears to be non-exhaustive; it does not adequately address key issues canvased by this research. The existing text and laws fall short on ground of specificity; they identify specific issues and dwell on them in detail.
A vast majority of available literature addresses environmental protection and sustainable development independently. There a quiet a few which mention both but yet, there is still the tendency of focusing on one more than the other.
Also, some of the literature reviewed focuses either on particular aspects of international environmental law or general concepts of environmental law. Despite the existence of some literature highlighting the existing conflict between environmental protection and sustainable development, it is difficult to find one which attempts to reconcile these conflicting interests.
Further, authors documenting from a Cameroonian perspective, did so exclusively in one domain of environment protection. Alemagi supra focuses entirely on the sustainable development in the forestry sector.
This research adopts quite a different approach, the researcher breaks away from away from traditional IEL and focuses on the conflict between environmental protection and sustainable development, highlighting the tension between both and attempt a reconciliation of same while not leaving out state responsibility in protecting the environment. The existing gap in the available literature makes this research timely and contemporary.
1.10 CONCEPTUAL AND THEORITICAL FRAMEWORK
From a theoretical and conceptual standpoint, the researcher invokes some models and theories of law in an attempt to elaborate on the subject matter of this thesis. The theoretical framework adopted in this study involves the triple pronged theory of human right, the human right-based approach and the instrumentalist model of law.
1.10.1 The Triple Pronged Theory
The triple pronged theory was developed and popularized by Henry Shue in his opus magnum titled Basic Rights, Subsistence, Affluence and US Foreign Policy31. According to this theory, the state has a triple duty to respect, protect and fulfill the human rights of its citizens. While the respect of human rights under this theory entails, the state does not act in any manner inconsistent with the rights of its citizens or infringe on their rights directly or indirectly, the duty to protect and fulfill human rights obliges states to put in the place legal and institutional framework to protect these rights by sanctioning their violation and make the environment favorable for the enjoyment of these rights respectively. The state would be considered to be in breach of this duty when it is itself the guilty of human right violation or does not provide adequate facilities for the enjoyment of these rights.
There is a nexus between the human right theory and environmental protection.
Environmental protect invokes a host of human right values, It has been argued that there now exist an international human right to a clean environment32. There are a range of general human rights provisions that are connected in one way or the other to environmental protection. The protection of the environment is essential for the enjoyment of basic human rights33 34 35. For instance, it becomes challenging to enjoy the right to health, adequate standard of living, life, education, and shelter in the midst of a flood or some other environmental hazard. There are a series of international instruments which suggest the link between human rights and environmental protection, for example; Article 24 of the African Charter of Human and People’s Right, 198 1 34, Article 11 of the Additional Protocol to the American Convention on Human Rights, 198 1 35. Moves towards associating these two areas of international are progressing gradually.36 A report on Human Right and Environment was delivered by the UN Sub-Commission on Prevention of Discrimination and Prevention of Minorities. The report captures the relationship between human right and the environment in the following words, ‘there are indivisible links between human rights, an ecologically sound environment, sustainable development and peace and all persons have the right to secure and healthy and ecologically sound environment37.
The human right theory informs this work in that, it obliges states to respect, protect and fulfill the human and environmental rights of their citizens, since both concepts are explicitly linked. In order for the state to effectively achieve this objective, they must attempt to strike a balance between the citizen’s entitlement to environmental protection on one side and the need to achieve sustainable development while not violating the people’s human right which is the substratum of this study. Further, the researcher is going to rely on the triple pronged theory to establish state responsibility in environmental protection and assess Cameroon’s compliance to international standards.
1.10.2 The Human Right Based Approach
In addition, the Human Right-Based Approach is yet another human right theory that would be employed in the course of this study. The human rights-based approach is a conceptual framework which posits citizens should know and claim their rights. The theory establishes a reciprocated duty on the right bearer to know their right and the duty holder to respect and fulfill this right. In this sense, it identifies rights-holders and their entitlements and corresponding dutybearers and their obligations, and works to strengthen the capacity of duty bearers to comply with their obligations and right holders to claim and exercise their rights. This approach builds the capacity of right bearers to claim and realize their rights and duty bearers to meet their obligation. Further, the right-based approach seeks to analyze inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress. A rights-based approach to environmental issues has been gaining momentum since the United Nations Environmental Agency proposed a new rights-based agenda for sustainable development in the document, ‘Transforming our world: The 2030 Agenda for Sustainable Development’38. Linking human rights to environmental justice has been an arduous task, but contemporary environmental ethicists argue that giving a human face to the environment that nurtures and sustains us is a precondition for sustainable development39.
The human right-based approach informs this research in that, the theory strengthens the capacity of citizens of developing countries can know and claim their rights to development and a natural environment in the midst of the global drive for environmental protection. More to this, the right-based approach guards against unjust and discriminatory practices that hamper development. This is of course, has a direct relationship to this study due the fact that there is a lot of skepticism surrounding the push by developed countries, for less developed countries to preserve the natural environment. Under this approach, developing countries will respect such a duty were it is not inconsistent with their development agenda.
1.10.3 The Instrumentalist Model of Law
The researcher also examines the issue of reconciling the tensions between environmental protection and sustainable development form the instrumentalist model of law that perceives law as a means to an end. An instrumental view of law means that law encompassing legal rules, legal institutions, and legal processes is consciously viewed by people and groups as a tool or means with which to achieve ends. The supply of possible ends is open and limitless, ranging from personal (enrichment, harassment, or advancement), to ideological (furthering a cause), to social goals like maximizing social welfare or finding a balance of competing interests40.
This theory had among its followers Rudolf von Ihering, Roscoe Pound and John Dewey. Ihering argued that law should be seen, not as an emanation from the common culture and not as a matter of abstract legal principles or concepts, but as an instrument utilized by individuals and groups to achieve their purposes. He further notes that the driving force behind legal development is continuous struggles among individuals and groups within society to have their interests reflected in and backed up by legal coercion41.
Similarly, Dewey viewed law through instrumentalist lenses, he posits that, the attainment of ends requires means and more often than not, law can be used as means to achieve a vital societal end42. Instrumentalists also perceive law as a tool for development which is one among many social ends. The major setback in this model of law is that, when law is considered as a powerful instrument in society, the most assertive and privileged members in the society are always going to manipulate, interpret and use law to serve their own interest.
This approach informs this study in that, it highlights the possibility of using law as an instrument to protect the environment and achieve sustainable development. The researcher can employ the instrumentalist approach to law by using the relevant environmental legislations to reconcile and achieve a vital end which in this case will be to protect the environment and to reconcile the tensions between environmental protection and sustainable development.
Further, this theory improves this research in that, it encourages the use of legal rules to promote development which is a social concern. The instrumentalist model of law can be used to promote the concept of sustainable development. This will be done by using law as an instrument for development in both the local and international scene.
1.11 SCOPE OF THE STUDY
This research will have a defined scope; the study will fall within a particular geographic and thematic scope.
The geographic scope for this research is restricted to revealing the tensions between environmental protection and sustainable development precisely in Cameroon. Although Cameroon is used as specific reference in the context of this study, this research will draw from developments in other parts of the world to justify certain developments within Cameroon and provide a better understanding on key issues canvassed in this research.
The thematic scope of this research shall be restricted to international environmental law specifically on the substantive issues of environmental protection and sustainable development.
Despite these restrictions, the research shall also study other related concepts to justify the objective of the work. Also, the researcher shall draw from other disciplines other disciplines like environmental science and geography in to seek an in-depth understanding of issues addressed in the research but not related to the field of law, in this regard, Wright43 cited gives this work a touch of environmental science.
1.12 DEFINITION OF KEY TERMS
a) The Environment
Etymologically, the word environment originates from the French word environner, which means to encircle or to surround. The environment can be defined as the circumstances and conditions that surround an organism or group of organisms or the social and cultural conditions that affect an individual or community44. In addition, the Black’s law dictionary45 defines the environment as a natural world in which living things dwell and grow. The environment in a broad sense can be subdivided into three sub categories to wit; the physical or natural environment (water, air, soil, fauna and flora), the social environment (man-made environment and cultural heritage), and psychological environment. However, this research will make constant use of natural environment.
b) Sustainable Development
Sustainable development can be defined as development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs46. The term was brought into common use by the World Commission on Environment and Development in their report “Our Common Future”. The concept was further expounded by the Brundtland Report 1987 which clearly outlined the meaning of sustainable development. The concept is now well entrenched in international circles that it has become almost an article of faith.47 It sounds comforting, so people want to believe it is possible. The meaning of sustainable development as used extensively in this work shall be that imputing development which is not harmful to the natural environment.
1.13 SYNOPSIS OF CHAPTERS
This thesis will comprise of five chapters, Chapter 1 presents the outline of the work viz the background to the study, statement of the problem, research questions, research methodology, research objectives, significance, justification and limitation to the study. This chapter will also review literature, examine gaps in literature reviewed, identify the scope of the study, define key terms and end with a synopsis of chapters.
Chapter 2 will examine the relationship between environmental protection and sustainable development. This chapter makes an overview of both concepts by looking at their meaning, nature and scope. It also uncovers the legal instruments and principles guiding the concepts as well as accesses the nature of state responsibility under international environmental law.
Similarly, Chapter 3 highlights the prime of the research; it locates and uncovers the perceived tensions between environmental protection and sustainable development by looking at the theories and arguments which highlight the tensions. The chapter further examines the manifestation of the tensions in the real world from Cameroon and beyond by bringing practical examples of areas of these conflicting interest as well as their effect on society.
Further, Chapter 4 presents models for the reconciliation of the tensions between environmental protection and sustainable, evaluates government efforts in reconciling same based on those models. This chapter also examines the challenges faced by the state in a bid find a solution to the conflicting agenda’s while highlighting the country’s prospect of attaining both objectives simultaneously.
Finally, Chapter 5 provides a summary of research finding, proffers some policy recommendations and a conclusion to the research.
ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT: GENERAL OVERVIEW OF CONCEPTS
This chapter essentially examines the concepts of environmental protection and sustainable development. It unravels the meaning, nature and scope of environmental protection by discussing numerous environmental concerns and measures adopted under international environmental law to confront them, while highlighting some key principles devised under international environmental law. It further discusses the concept of sustainable development by examining its role and importance in environmental protection, its origins, its articulation in treaties and documents in international environmental law as well as principles on which the concept is based. This chapter therefore addresses the first specific objective of this research aimed assessing the relationship between environmental protection and sustainable development and is in response to the first specific research question on the existence of a relationship between environmental protection and sustainable development.
This chapter is underpinned by the human-right based approach which gives a human right interpretation to environmental protection and considers sustainable development at the heart of the environmental protection, Thus, establishing a link between environmental protection and sustainable development which forms the core of this chapter.
2.1 THE CONCEPT OF ENVIRONMENTAL PROTECTION: MEANING, NATURE AND SCOPE
Environmental protection simpliciter refers to any measure taken to conserve, maintain and preserve the state of the environment. This definition though having the advantage of been simplistic, may however be considered too restrictive in the sense that; it limits the concept of environmental protection to the avoidance or prevention of acts or activities which are harmful to the environment, thereby interpreting environmental protection from a largely negative point of view, with emphasis on what should not be done in order to keep the environment safe. Notwithstanding, environmental protection goes beyond the prevention of harm to the natural environment, in recent times, it requires positive actions by stakeholders which enhance a safer environment, to wit; environmental protection is not only limited to what should not be done to protect the environment but it also entails what should be done to sustain the environment (positive action). Similarly, definition of environmental protection is subjective, every treaty tends to define it based the subject matter it protects to wit; the Kyoto Protocol will view environmental protection purely from the perspective of climate change and pollution while the Convention of Biodiversity will look at it from an angle of conserving plant and animal life (biodiversity).
Further, the nature of environmental protection has evolved with time. From the onset, environmental protection was simply geared towards the preservation endangered species of fauna and flora as reflected in the early treaties. Under this form of protection, states simply had to ensure the protection of their natural environmental to fulfill their obligations under the treaty. From this initial setting, environmental protection expanded to protection of other natural elements like air, water, land, space and in fact basically everything around us which has an impact on the environment is now subject to environmental protection. Though these elements may fall within the territorial boundaries of a particular state, their use causes effects beyond their boundaries; this therefore imposes a new standard of protecting the environment. This new standard takes environmental protection from a national to an international obligation which imputes a responsibility on states to cater for their environment. This forms the basis of environmental protection under international law and to these we now turn.
The basis of environmental protection under international law is rooted in the general principle of state responsibility, which holds states accountable for breaches of international law by according the injured state, the possibility of maintaining a claim against the violating state through international mechanisms put in place or by way of diplomatic action.48 The right of an injured state to bring a claim against another state for the violation of an international duty equally extends to international environmental law, in this domain, states are bound by their commitment under treaty not only to use their environment in a manner not harmful to others but to prevent occurrence of activities within their states that adversely affects the rights of other states, anything short of this is considered as a breach under international environmental law to which there is a wide jurisprudence of cases.49
The act of holding states responsible for the breach of an environmental duty is obviously a veritable means of protecting the environment under international law, but is raises certain questions which beacon answers. Primo, what is the threshold of injury required for the breach of an international duty in environmental law? Apparently not all environmental instruments are indicative of the level of damage considered as breach; this presents a difficulty to determine the degree of damage caused by the violating state which entitles victims the right to bring a claim. However, there is some consensus that the damage complained of must be unduly injurious to the inhabitants of the neighboring state.50 This stance is reflected in a number of instruments for instance; Article 1 of the Convention on Long-Range Transboundary Air Pollution, 1979 provides that the pollution concerned must result ‘in deleterious effect of such nature as to endanger human health, harm living resources and ecosystems and ... interfere with amenities and other legitimate uses of the environment’, the UN General Assembly Resolution 2995 (XXVII) refers to the damage which causes ‘significant harmful result’ while in the Trial Smelter Case the tribunal focused on the need to show that the damage was of ‘a serious consequence’51, a similar view has been reflected in other instruments52. The underlying idea in all these instruments is that, the damage or injury cause should at least be of a substantial or serious nature to amount to a breach of an international duty under IEL.
Environmental protection is not to be taken lightly considering the numerous environmental problems afflicting the world at the moment; from climate change, pollution, depletion of the ozone layer, to soil erosion, desertification, loss of biodiversity, overpopulation just to name a few. These problems are a threat to human existence and require urgent attention. By way of demonstration, overpopulation is a threat to the environment, the world’s population is increasing by approximately 76 million people per year and has a projected growth to 9.1 billion by 2050,53 the fact that population is growing at a geometric progression while food supply and other economic resources are increasing at an arithmetic progression causing a lot of pressure on existing resources which adversely affects the environment. In addition, the ecosystem is fast declining around the world with the depletion of groundwater supplies, degrading agricultural soils, overfishing and cutting trees faster than they regrow54, the loss of biodiversity is a leading to the extinction of some species of plants and animals alike, pollution is playing no small role in making the air unhealthy, degrading marine and aquatic habitats and destroying the species they support. To successfully protect the environment under IEL, states have signed a number of international instruments relating to environmental protection, held regular summits to discuss pertinent issues and made firm declarations to honor their commitments under international law. These measures are encapsulated under the various principles of international environmental law.
2.2 PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
The study and practice of international environmental law is guided by a series of generally accepted principles. The generality of these principles do not automatically translate to being universally binding on states, the significance of the generality is that, they can be applied to the international community for the protection of the environment. These principles have risen out a consensus between state parties on certain reciprocal duties owed to one another under international law and are reflected in a number of treaties. Although these principles are common to international law, they play a unique role in environmental law; they are guidelines or the parameter on which environmental protection is guaranteed.
2.2.1 The Principle of State Sovereignty and Responsibility
The principles of state sovereignty and state responsibility are two contradictory principles in international environmental law,55 the former accords greater freedom to act while the latter imposes caution in acting. The sovereignty over natural resources and legislation of individual policies is a fundamental right of states. Notwithstanding, the concept of sovereignty is not absolute, it is subject to a general duty not to cause environmental damage to the environment of other states, or to areas beyond a state's national jurisdiction.
This principle recognizes the right of a state to introduce their individual environmental policies as a manifestation their sovereignty, however, such right comes with a duty/responsibility to ensure that such policies/actions do not injure another state. This principle was endorsed in the Trail Smelter case56 between the United States and Canada were the United States sought damages from Canada in court and equally prayed for an injunction for air pollution in the state of Washington by the Trail Smelter, a Canadian corporation which is domiciled in Canada. The court held Canada responsible in international law for the conduct of the Trail Smelter Company. Hence, the onus lies on the Canadian government to see to it that Trail Smelter’s conduct should be in line with the obligations of Canada as it has been confirmed by International law tribunal. This principle was further recognized by Principle 21 of the Stockholm Declaration57.In essence, the principle of state sovereignty and responsibility guarantees freedom in the legislation of environmental instruments as well as imposes a duty of care on the individual state with regard to the effect of their action to 3rd parties. In summation of the above, the obligation to prevent environmental harm is not only a negative obligation not injure 3rd party states, it more or less inculcates a positive obligation to protect the environment.
The principle of state sovereignty and responsibility is relevant to environmental protection in that, though it recognizes the right of states to regulate the use of their environment, it imposes a responsibility on them to act in a manner not harmful to other states. Similarly, this principle takes away the statutory defense of territorial sovereignty often used by states to evade being held responsible for breach of their duty under IEL.
2.2.2 The Precautionary Principle
This principle is to the effect that, states take pre-emptive actions towards protecting the environment to avoid imminent danger. According to this principle, states should carry out scientific assessment to ensure that their actions are not harmful. However, to wait for scientific confirmation to assess the risk of an act before undertaken same to protect the environment is often problematic because scientific confirmation/certainty usually comes too late for lawyers and politician, the burden of proof to prove that the action is not harmful falls on the party taking 57 “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”
1 Richard Wright, Environmental Science (New Jersey: Pearson Education Inc., 2008) p. 5
2 A case in point is on the 23rd of August 2019 where there were significant protests in font of Brazilian Embassies in Europe following the Brazilian government’s inaction on Amazon wildfires.
3 R.C Fuller, Good News Bible, Genesis 1 verse 1-30 (America: American Bible Society, 1976) p. 4
4 Ibid. Deuteronomy 20 verse 19, p.191.
5 Edith Brown Wies “The Evolution of International Environmental Law” Japanese Year Book of International Law, Volume (54) , pp. 1-24, p. 1
6 Ibid p. 2
7 D. Bodansky, J. Brunnee and E. Hey (eds.), The Oxford Handbook on the Evolution of International Environmental Law (Oxford: Oxford Press, 2007) p. 31
8 Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (1940) United Nations Treaty Series, Vol 161 p. 193 London Convention relative to the Preservation of Fauna and Flora in their Natural State, (1933) League of Nation Treaty Series , Vol 172, p.241
9 D. Bodansky supra p.33
10 Ibid., p.34
11 Edith Brown Wies supra p.4
12 Otherwise known as The World Commission on Environment and Development
13 Law No 2008/01 of 14 April 2008 to amend and supplement some provisions of law No 96/6 of 18 January 1996 to amend the constitution of 2 June 1972.
14 The preamble is part and parcel of the constitution.
15 Law No 94/01 of 20th June 1994 to lay down Forestry, Wildlife and Fishery Regulations.
16 Law No 2016/007 of 12 July 2016 Relating to the Penal Code.
17 Law No 96/12 of 15 August 1996 on the Environmental Code
18 Law No 1 of 16 April 2001on the Mining Code
19 Law No 2003/006 of 21st April 2003 on the Biosafety Law
20 Richard Wright supra p.7
21 James Speth, Red Sky at Morning (Yale: Yale University Press, 2005) p. 10
22 James Gustave Speth, Dean of Yale School of Forestry and Developmental Studies and former administrator of the UN Development Program.
23 Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 2008)
24 D. Bodansky, J. Brunnee and E. Hey Eds, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) p. 31 -54
25 Richard T. Wright supra
26 James Speth, Red Sky at Morning (Yale: Yale University Press, 2005)
27 P. Birnie and A. Boyle, International Law and the Environment (Oxford: Oxford University Press, 2002) p. 13
28 Dieudonne Bitondo, “Environmental Assessment in Cameroon: state of the art”, Impact Assessment and Project Appraisal, Vol. 18 (No. 1), 2000: p.33-42, p1.
30 Dieudonne Alemagi, “Sustainable development in Cameroon’s forestry sector: Progress, challenges and strategies for improvement”, African Journal on Environmental Science and Technology, Vol. 5(2), 2011: p. 65-72, p. 68
31 Henry Shue, Basic Right, Subsistence, Affluence and US Foreign Policy (Princeton : Princeton University Press, 1980)
32 M. Pallemaerts, International Environmental Law from Stockholm to Rio: Back to the Future? (London: Greening International Law, 1993) p.1
33 Malcolm Shaw, International Law (Cambridge : Cambridge University Press, 2008) p. 847
34 ‘All people shall have a right to a general satisfactory environment favorable to their development’
35 ‘Everyone shall have the right to leave in a healthy environment and the state parties shall promote the protection, preservation and improvement of the environment’
36 Malcolm Shaw supra p.848
38 Yesudas Choondassery, “Right-based Approach: The Hub of Sustainable Development”, Discourse and Communication for Sustainable Education, Vol. 8 (2), 2017: p. 17-23, p.17
40 Brain Tamanaha, Law as a Means to an End: Threat to the Rule of Law (New York: Cambridge University Press, 2006) p.6
41 Rudolph von Ihering, The Struggle for Law (Westport, Conn.: Hyperion Press 1979) p. 10-11
42 Brain Tanamaha supra p.4
43 Richard Wright supra
44 Cunningham, Mary Cunningham, B. Saigo, Environmental Science: A Global Concern (New York: McGraw Hill, 2003) p. 3
45 Bryan Garner, Black’s Law Dictionary (Massachusetts: Thomas West, 2014), p.651.
46 Brundtland Commission, Our Common Future: Report of the World Commission on Environment and Development (Oxford: Oxford University Press, 1987)
47 Richard T. Wright Supra p.10
48 Malcolm Shaw supra p. 851
49 See Island of Palmas Case 1928, The Trial Smelter Arbitration Case, The Corfu Channel Case et al
50 L. Oppenheim, International Law (London:Longmans,1955) p. 291
51 Malcolm Shaw supra p. 857
52 See Article 3 of the International Law Association Montreal Rules 1982 which requires the nature of the injury to be substantial, also see Article 1 of the ILC’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.
53 UN Population Division,2004 revision
54 Wright supra p. 6
55 Max Soto, “General Principles of International Environmental Law”, ISLA Journal on International and Comparative Law, 3(1) p. 194-207, p. 194.
56 Arbitral Tribunal, United Nations Reports on International Arbitrary Awards 1905 (1941)